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Michigan Schools Required To Offer 'Shared Time'

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A sharply divided Michigan Supreme Court has ruled that the state's public schools must open "nonessential" courses such as band and art to local private-school students whose schools do not offer such electives.

The "right to public education is not conditioned on full-time enrollment," the court held 4 to 3, noting that "shared time has been an accepted method of education in this state for the past 60 years."

The dissenting justices, however, criticized the decision requiring all public schools to offer some shared-time programs as an example of unwarranted "judicial intervention in educational policymaking." They added that the majority's interpretation of the state school code not only strains the law but "tortures it."

A lawyer for the Charlotte Public School District, the defendant in the case, said the city's school board has decided to seek a rehearing before the court. Observers pointed out that one of the four justices who held against the district is no longer on the bench, thus raising the possibility that the decision could be modified on appeal.

The court's Dec. 28 decision, which was made public on Feb. 11, involves only shared-time classes conducted by public-school teachers on public-school property. A different lawsuit involving the Grand Rapids public schools' practice of offering shared-time instruction to private-school students in classrooms leased from private schools was argued before the U.S. Supreme Court last December. A decision in that case could be handed down at any time. (See Education Week, Dec. 12, 1984.)

Access to Band Class

The case decided by the state's high court, Snyder v. Charlotte Public School District, stemmed from a 1981 decision by Charlotte school officials not to enroll Brenda Snyder, a 6th-grade student at a private religious school, in a public-school band class. The Snyders offered to provide their daughter's transportation and musical instruments. Elwood Larsen, superintendent of the district, explained last week that ''the position of the district for many years has been that we don't accept part-time enrollment, or shared time, as it is commonly called."

The parents filed suit in Eaton County Circuit Court, alleging that the district's policy violated their daughter's right under state law to public education. They also alleged violations of their First Amendment right to freely exercise their religion and their 14th Amendment right to equal protection under the law.

The circuit court ruled against the parents, holding that state school systems are not required to offer shared-time instruction and that the Snyders' First and 14th Amendment rights had not been violated. The state court of appeals upheld the lower court's ruling "over a lengthy dissent," according to papers filed in the case.

"Allowing Brenda and other nonpublic-school students to participate in public-school classes will not3place an unreasonable burden on the public-school system," said the high court in reversing the lower courts' decisions.

"'Nonessential elective courses' such as band, art, domestic science, shop, advanced math and science classes, etc., need not be taught in nonpublic schools," wrote Justice Michael F. Cavanagh for the majority. "These are the types of courses that have traditionally been offered on a shared-time basis. Thus, once these types of courses are offered to public-school students in the district, they must also be offered to resident nonpublic-school students."

All Classes Not Covered

However, the court went on to explain that "not every class offered by a public school must be made available [to private-school students] on a shared-time basis."

"If shared-time instruction were required for all courses, it would be possible for a nonpublic school to offer a full curriculum to its students while conducting only a small percentage of the classes at the nonpublic school," the court said. Such a requirement, it continued, "might constitute impermissible direct aid to the parochial school, rather than legitimate aid to the students which incidentally benefits the parochial school."

Not Violation of Clause

Furthermore, the court said, shared-time arrangements do not violate the establishment clause of the First Amendment, nor would they "tend to disorganize the school and handicap the school authorities in maintaining the school."

"It would be just as easy, economical, and convenient (if not more so) to open these classes to nonpublic-school students as it would be to provide these classes to them if they became full-time public school students," the court said.

Finally, the majority said that Charlotte school officials could not prove that allowing part-time enrollment would result in a decrease in full-time public-school enrollment. "Better education and discipline, as well as the installation of religious and ethical ideals, are generally the reasons parents send their children to nonpublic schools, rather than the availability of shared-time instruction," it said.

In a stinging dissent joined by two other justices, Justice James H. Brickley endorsed the constitution-ality and desirability of the shared-time concept but criticized the majority's decision to require such programs.

'No Statutory Justification'

"The majority not only mandates a shared-time program for all of Michigan's public-school districts, but, in doing so, presumes to dictate those courses which shall or shall not be mandated," he wrote. "I find no statutory justification for such judicial intervention in educational policymaking."

"The issue is not whether such a program is desirable, but whether it must be offered," said Justice Brickley, a former Republican lieutenant governor. The section of the school code upon which the majority based its decision "read in its entirety is clearly intended to deal with the beginning age of students and to distinguish the starting age as between districts that have or do not have kindergarten," he said. "Any attempt to make [the section] the basis for mandatory shared time not only strains that section, but in my view, tortures it."

Impact Disputed

"If the decision stays in its present form, the major problems public schools will face will be defining the difference between the base curriculum and 'nonessential elective courses,"' said Thomas Nordberg, the Charlotte schools' lawyer.

"If we don't get this defined, we'll be litigating the concept of core curriculum for the next 10 years," he said.

A lawyer for the Michigan School Boards Association, which filed a friend-of-the-court brief on behalf of the Charlotte schools, added that the decision would create "widespread administrative difficulties" for public schools.

She also said it might encourage a significant number of private schools to drop expensive elective classes and to send their students to public schools for those courses.

According to the state education department, approximately 12,500 Michigan private-school students are currently enrolled in shared-time programs at public schools.

Spokesmen for an umbrella group representing some 600 Roman Catholic, Lutheran, and Christian schools in the state disputed the school-boards association's predictions, however, saying, "You won't see a push on the part of nonpublic schools to flood public schools with their students."

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